1
NATO Legal Gazette
ARTICLES
- Normative Power Europe:
Status of Forces Agreements in
the Field of European Security
and Defence Cooperation
Dr. Aurel Sari
- General Principles of the NATO
Claims Policy
Pierre Degezelle, Legal Adviser,
Air Force Captain,
Belgian Ministry of Defence,
Belgian Claims Office
- NATO-Russia Relations: A Study
in Reservations
Natalia Neufeld,
VNC Intern
- The Evolving Role of the Legal
Advisor in Support of Military
Operations
Thomas E. Randall,
Legal Advisor, Supreme
Headquarters Allied Powers
Europe (SHAPE)
Book Review: Shipping
Interdiction and the Law of the
Sea, by Douglas Guilfoyle
Book review authored by
Vincent Roobaert
Assistant Legal Adviser, NCIA
SPOTLIGHT:
CDR Shelby L. Hladon, JAGC,
USN Staff Legal Adviser,
Allied Command Transformation
Mr. David Nauta
Dutch, NATO civilian,
Deputy Legal Adviser
Joint Warfare Centre,
Stavanger, Norway
Ms. Alexandra Perz,
DEU CIV, Assistant Legal Adviser,
Allied Command Transformation
Lt Col Darrin K. Johns,
USAF Chief Legal Adviser,
NATO Headquarters Sarajevo
July 2012
Issue 28
Editor: John Basilici
ACT/SEE Legal Office
Introduction
Dear Legal Colleagues and Persons Interested in NATO,
With pleasure we publish our 28th issue of the NATO Legal Gazette.
In this edition, we again receive the benefit of a substantive contribution
from Dr. Aurel Sari. His article titled Normative Power Europe: Status of Forces
Agreements in the Field of European Security and Defence Cooperation
undertakes the task of defining the “legal position of the military and civilian
personnel, as well as the forces and headquarters, deployed by one EU
Member State in the territory of another Member State in the context of
what is now the Common Security and Defence Policy.” Captain Pierre
Degezelle, BEL AF, who is currently assigned to the Claims Office of the Belgian
Ministry of Defence, provides his thoughtful and hands-on perspective in our
second article, General Principles of the NATO Claims Policy. In our third article,
Mr. Thomas E. Randall, Legal Adviser, Supreme Headquarters Allied Powers
Europe (SHAPE) offers his perspective on The Evolving Role of the Legal Adviser
in Support of Military Operation formed by his distinguished service of more
than thirty years as a military and civilian legal adviser.
Recent ACT SEE intern and now full jurist in Germany, Natalia Neufeld
explores the legal effect of treaty reservations in her article, NATO Russia
Relations: A Study in Reservations. Ms. Neufeld offers the ratification process of
the PfP SOFA undertaken by NATO nations and Russia as a case to frame her
analysis. Finally, our most prolific contributor to this Gazette, Mr. Vincent
Roobaert, of the NATO Communications and Information Agency (NCI
Agency) provides us with his book review of Douglas Guilfoyle’s Shipping
Interdiction and the Law of the Sea.
As usual, this issue spotlights members of our NATO legal community,
offers hails and farewells to the frequently changing members of the NATO legal
community as well as providing general news and information about upcoming
events.
Finally, for persons in NATO or national legal posts addressing NATO
issues, the 2012 NATO Legal Conference will be held from 24-28 September in
Tirana, Albania. Mark your calendars for this important event to be held in the
capital of one of NATO’s newest member states.
- Hail and Farewell
Best regards from sunny Belgium,
Sincerely,
Lewis
GENERAL INTEREST
Calendar of
Upcoming Events
Sherrod Lewis Bumgardner
Legal Adviser, Allied Command Transformation, Staff Element Europe
*Articles/Inserts
for next newsletter can be addressed to
Sherrod Bumgardner ([email protected]) and
Kathy Bair ([email protected]).
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2
Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
Dr Aurel Sari (*)
Introduction
Over the past decade, the European Union has taken a series of steps
designed to provide its Common Foreign and Security Policy with an
operational capability. Cooperating voluntarily, the Member States have
agreed to make available to the Union a range of civilian and military assets
to be deployed in EU-led crisis management missions, while for its part the EU
has equipped itself with dedicated civilian and military organs capable of
exercising political control and strategic direction over those assets.1 As a result
of these developments, the EU has conducted over two dozen crisis
management missions on three continents since 2003.2 While these numbers
are impressive, the mandates of EU operations, and consequently their scope
and significance, has varied considerably. At the higher end of the spectrum,
the Union has conducted a handful of large-scale missions in sometimes
challenging political and operational environments, including Operation
Althea, the UN-mandated follow-on mission from SFOR in Bosnia and
Herzegovina. At the lower end, the EU has carried out a number of assistance
and training missions, in particular in the area of the rule of law and security
sector reform.
*
1
2
Lecturer in Law, University of Exeter. Email: [email protected]. The title of this contribution is
borrowed in part from Ian Manners’ seminal article entitled ‘Normative Power Europe: A
Contradiction in Terms?’ (2002) 40 Journal of Common Market Studies 235. Manners argued
that the EU’s normative construction predisposes it to act in a normative way in international
politics. While this argument may overestimate the unique features of the EU and
underestimate the extent to which other international organizations too are agents of
normative change (the UN is an obvious case in point), this contribution does confirm that the
phrase ‘normative power’ is not a contradiction in terms when applied to the EU. Not only is
the Union capable of setting a normative agenda on the international stage, but in doing so
it is evidently motivated by a healthy dose of self-interest.
According to Article 42 of the Treaty on European Union (Lisbon), the EU may deploy civilian
and military assets made available to it ‘on missions outside the Union for peace-keeping,
conflict prevention and strengthening international security in accordance with the principles
of the United Nations Charter.’
The European External Action Service maintains an up-to-date list of EU operations on its
website. For a detailed review of the main legal aspects of EU operations, see F. Naert,
International Law Aspects of the EU's Security and Defence Policy, with a Particular Focus on
the Law of Armed Conflict and Human Rights (2010), at 97–191.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
This process of capacity building and growing operational
engagement on the ground has gone hand-in-hand with the
development of the legal framework necessary to enable the EU to meet
its expanded responsibilities. Internally, the Council of the European Union
has adopted a range of legal instruments establishing new political and
military structures and addressing related institutional matters, such as
staffing regulations. Externally, the EU has entered into a substantial
number of international agreements with third countries and other
international organizations, in particular NATO.3 These have included status
of forces agreements concluded with States hosting EU missions in their
territory, participation agreements with third States contributing personnel
and assets to such missions and agreements regulating the exchange of
classified information between the EU and third parties.4 For the EU, the
conclusion of these agreements had constitutional implications, as it
confirmed, in the opinion of most commentators,5 that the Union
possessed treaty-making capacity and therefore international legal
personality even before the Treaty of Lisbon conferred this status upon it in
express terms. However, the EU’s treaty practice is of wider interest as well,
in particular its practice relating to status of forces agreements.
The present contribution aims to provide an overview of the status of
forces agreements concluded in the context of European Security and
Defence Policy.6 Two types of instruments must be distinguished in this
respect: the status of forces agreement concluded among the Member
States of the EU in 2003 on the one hand and the agreements concluded
by the EU with third States hosting EU crisis management operations on the
other hand. Both types of agreements merit attention here and I will deal
with them successively.
The EU SOFA: Sleeping Beauty
On 17 November 2003, the Representatives of the Governments of the
Member States of the EU signed the EU Status of Forces Agreement, known
colloquially as the EU SOFA.7
3
4
5
6
7
See M. Reichard, The EU-NATO Relationship: A Legal and Political Perspective (2006).
For an overview of these different agreements, see A. Sari, ‘The Conclusion of
International Agreements by the European Union in the Context of the ESDP’, (2008) 56
ICLQ 53, 55–59.
E.g. P. Koutrakos, EU International Relations Law (2006), at 409.
For a more extensive discussion of these issues, see A. Sari, ‘The EU Status of Forces
Agreement: Continuity and Change in the Law of Visiting Forces’, (2007) 46 Mil L & L War
Rev 9; A. Sari, ‘The EU Status of Forces Agreement (EU SOFA)’, (2008) 13 J Conflict & Sec L
353; A. Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s
Evolving Practice’, (2008) 19 EJIL 67.
Agreement between the Member States of the European Union concerning the status of
military and civilian staff seconded to the institutions of the European Union, of the
headquarters and forces which may be made available to the European Union in the
context of the preparation and execution of the tasks referred to in Article 17(2) of the
Treaty on European Union, including exercises, and of the military and civilian staff of the
Member States put at the disposal of the European Union to act in this context (EU SOFA),
Brussels, 17 November 2003, OJ [2003] C 321/6.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
The purpose of this text is to define the legal position of the military and
civilian personnel, as well as the forces and headquarters, deployed by
one EU Member State in the territory of another Member State in the
context of what is now the Common Security and Defence Policy
(CSDP).8
The EU SOFA is for the most part modelled on the relevant
provisions of the NATO SOFA of 1951.9 This is not entirely surprising,
considering that all of the then fifteen Member States of the EU, except
Ireland, were parties to the NATO SOFA or the Partnership for Peace
SOFA, 10 as were most of the States waiting to be admitted to EU
membership in 2004. Whereas the EU SOFA thus shares most of its genes
with the NATO SOFA, it departs from its predecessor in several important
respects, above all in its scope of application and structure.
In the case of NATO, three different instruments were negotiated
to address the legal requirements of three distinct classes of personnel
and entities: the NATO SOFA dealing with forces deployed by one NATO
country into the territory of another, the Ottawa Agreement regulating
the status of NATO as an international organization, national
representatives and international staff, 11 and the Paris Protocol defining
the status of NATO’s integrated military headquarters.12 In the EU’s case,
the drafters of the EU SOFA interpreted their mandate to require them to
accommodate all personnel engaged in EU crisis management activities,
whether acting in a national or international capacity, within a single
instrument.13 In effect, the EU SOFA thus attempts to combine the diverse
objectives and scope of the three NATO instruments in one text.
8
9
10
11
12
13
See Articles 42 to 46 of the Treaty on European Union (Lisbon).
Agreement between the Parties to the North Atlantic Treaty Regarding the Status of
Their Forces, London, 19 June 1951, 199 UNTS 68.
Partnership for Peace Status of Forces Agreement, 19 June 1995, TIAS 12666.
Agreement on the Status of the North Atlantic Treaty Organization, National
Representatives and International Staff, Ottawa, 20 September 1951, 200 UNTS 4.
Protocol on the Status of International Military Headquarters Set up Pursuant to the North
Atlantic Treaty, 28 August 1952, 200 UNTS 340.
See Council doc. SN 4438/01, 31 October 2001, at para. 9.
NON SENSITIVE INFORMATION RELEASABLE TO THE PUBLIC
“The EU SOFA is for the
most part modelled on the
relevant provisions of the
NATO SOFA of 1951.”
5
Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
The EU SOFA achieves this goal by distinguishing between different
types of personnel and subjecting them to distinct rules. These rules are
arranged into four parts. Part I of the EU SOFA contains provisions of general
applicability, such the duty to respect local law or the rules governing the
wearing of uniform and the identification of vehicles, which apply to all military
and civilian staff covered by the Agreement.14 Part II consists of two articles
which apply solely to the military and civilian staff seconded by the Member
States to the institutions of the EU.15 The first article deals with the carrying of
arms, while the other grants seconded personnel immunity from legal process
of any kind in respect of words spoken or written, and of acts performed by
them in the exercise of their official functions. Part III applies only to
headquarters and forces and to the military and civilian staff working with
them.16 This is the most extensive section of the EU SOFA and the one that
follows the NATO SOFA most closely. It contains rules relating to the transit and
deployment of forces and headquarters; emergency medical care; the
availability of buildings, grounds and connected facilities; policing; the carrying
of arms; post, telecommunications and travelling facilities; the inviolability of
archives and official documents; taxation; criminal jurisdiction and civil
jurisdiction and claims. The last two provisions for the most part replicate Articles
VII and VIII of the NATO SOFA. Finally, Part IV consists of a sole article setting out
the final provisions of the EU SOFA.17
14 Articles 1 to 6 EU SOFA.
15 Articles 7 and 8 EU SOFA.
16 Articles 9 to 18 EU SOFA.
17 Article 19 EU SOFA.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
In addition to their distinct scope of application and structure, the
two agreements differ in other important respects as well. The EU SOFA
reproduces certain provisions of the NATO SOFA subject to significant
modifications. For instance, whereas under the NATO SOFA members of a
force or a civilian component and their dependents may receive medical
and dental care provided that the force’s own facilities are inadequate,
under the EU SOFA military and civilian staff shall receive emergency
medical and dental care only. A more curious example is the right of foreign
forces to police themselves: by changing the original order of words found in
the relevant provision of the NATO SOFA, the EU SOFA makes this right
dependent upon the agreement of the receiving State. Other provisions are
not reproduced at all, including the fair trial guarantees found in Article VII of
the NATO SOFA and most of its economic provisions. Both fields are already
covered by more specific rules under EU law. Overall, marked and
substantial differences therefore exist between the EU SOFA and the NATO
SOFA: it would be a mistake to believe that the former merely duplicates the
latter.
The conclusion of the EU SOFA represents an important mile-stone in
the development of European Security and Defence Policy, for it establishes
a legal framework which enables the Member States to temporarily deploy
their personnel into each other’s territory on the basis of well-established rules
derived from the NATO SOFA. The success of the EU SOFA thus depends on
whether the Member States succeeded in addressing the specific
requirements of European security and defence cooperation without
departing unnecessarily from the spirit and letter of the NATO SOFA.
Measured against this standard, the results are mixed.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
The EU SOFA does not address the legal status of all categories of
military and civilian staff operating in the context of the CSDP. For
example, the Agreement applies neither the personnel seconded to
ATHENA nor the intergovernmental mechanism set up to administer the
common costs of EU military operations. Neither does it apply to the
military personnel of the European Defence Agency. More importantly,
the application of the EU SOFA is subject to a series of restrictions. The
most significant among these is what may be termed the principle of
subsidiarity: Parts I and III of the EU SOFA apply to any forces and
headquarters and their personnel only in so far as their status is not
already regulated by another agreement.18 This means not only that any
existing agreements, including the NATO SOFA, will supersede the EU
SOFA to the extent that they overlap with it, but it also enables two or
more Member States to derogate from the EU SOFA by concluding
subsequent agreements to this effect. The end result is that the legal
status of forces operating in the context of the CSDP is governed by an
intricate patchwork of legal instruments rather than a single coherent set
of rules.
Nor can the division of the EU SOFA into four parts be described
as an unqualified success. Although this division allows different
categories of personnel to be governed by distinct rules within the
confines of a single text, there are other, less favourable and presumably
unintended, consequences of this drafting technique. Whereas the NATO
SOFA defines its personal scope of application with reference to the term
‘force’, the EU SOFA relies on the generic concept of ‘military staff’ and
‘civilian staff’ to refer collectively to the different categories of personnel
it covers. The use of these generic definitions seems to entitle sending
States to exercise their criminal and disciplinary jurisdiction in the territory
of the receiving State over personnel belonging to other sending States,
at least on a purely textual reading. The use of these generic terms also
leads to a remarkably broad definition of a ‘force’. As defined in the EU
SOFA, the term ‘force’ is not synonymous with armed force, but has a
mixed civilian–military meaning. It may include national contingents as
well as multinational military formations. It may even refer to single
individuals. Not only does this stretch the concept close to breaking
point, but it also complicates the interpretation of the text.
18
Article 19(6) (a) EU SOFA.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
However, for the time being, none of this presents any difficulties in
practice. Despite the Member States’ stated intention ‘rapidly to agree
among themselves’ on the EU SOFA,19 the Agreement has still not entered
into force more than eight years after its adoption.20 This cannot but raise
questions about the weight that the Member States attach to it. In the
absence of a practical role, the significance of the EU SOFA is therefore of a
more abstract nature: its conclusion confirms the NATO SOFA as the
appropriate model for the negotiation of multilateral status of forces
agreements in the context of structured military cooperation among
politically equal partners. Indeed, it is the very success of the NATO SOFA
which condemns the EU SOFA to a subsidiary existence.
“Since the EU SOFA
applies solely between
the Member States of the
EU and only within their
territory, the EU has
found it necessary to
EU Mission SOFAs: Bucking the Trend
make separate
arrangements to regulate
Since the EU SOFA applies solely between the Member States of the EU
and only within their territory, the EU has found it necessary to make separate the legal position of
arrangements to regulate the legal position of European military and civilian European military and
civilian staff deployed
staff deployed into the territory of third countries. In some cases, the
applicability of pre-existing arrangements concluded by the Member States into the territory of third
countries.”
or by third parties was simply extended to EU missions. For example, in the
case of Operation Artemis, the EU’s first ever military mission, the Government
of Uganda unilaterally extended the application of a bilateral agreement it
had concluded with France in June 2003 to other contributing States
deploying personnel and assets to Uganda where the forward operating
base of the mission was located.21 In the majority of cases, however, the EU
has negotiated separate status agreements with third States hosting EU crisis
management missions.
19
Council doc. 10188/01, 21 June 2001, at 2.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
In its initial practice, the EU followed the precedent set by the
Memorandum of Understanding concluded in 1991 between the European
Community and its Member States on the one hand and the Federal Authorities
of Yugoslavia and the Republics of Croatia and Slovenia on the other hand in
order to define the mandate and status of the European Community
Monitoring Mission (ECMM).22 This instrument conferred upon the ECMM’s
personnel the privileges and immunities enjoyed by diplomatic agents under
the Vienna Convention on Diplomatic Relations of 1961. These status
arrangements remained in place when the EU entered into new agreements
with the Federal Republic of Yugoslavia, FYROM and Albania following a
restructuring of the ECMM in 2000.23 Subsequently, they also served as a model
for seven status of forces agreements drawn up between 2003 and 2005.
The conferral of diplomatic status on members of foreign armed forces is
not unusual in international law. High-ranking members of peace support
operations, such as heads of mission or force commanders, are routinely
granted privileges and immunities enjoyed by diplomatic agents, while smaller
contingents deployed abroad on short-term advisory or assistance missions
sometimes benefit from treatment equivalent to that accorded to
administrative and technical staff under the Vienna Convention. However, it is
quite exceptional in international practice to confer the full array of diplomatic
privileges and immunities on every member of a foreign contingent, especially
when the number of troops involved is relatively high. Although no rules of
international law prevent the EU from maximising the privileges and immunities
of its crisis management missions, such a strategy may nevertheless be
perceived as heavy-handed and sits somewhat uncomfortably with the EU’s
self-image as a global champion of human rights and the rule of law. In fact, it
appears that this strategy has been a source of contention within the EU. In a
paper submitted in December 2002, the Danish Presidency of the Council of the
EU advised against the wholesale adoption of the status regimes contained in
the Vienna Convention on Diplomatic Relations and instead supported a more
flexible ‘building-block’ approach whereby the legal position of EU missions
would be defined on a case-by-case basis to reflect their specific functions and
operational circumstances.24
20
21
22
23
24
As of November 2011, three Member States have not yet notified the Secretary-General of the
Council of the European Union of the completion of their constitutional procedures for the
approval of the EU SOFA.
Council doc. 12225/03, 4 September 2004.
Memorandum of Understanding on the Monitor Mission to Yugoslavia, 13 July 1991 (on file with
the author). See D. Lopandic, ‘Les Mémorandums d’Entente: Des Instruments Juridique
Spécifiques de la Politique Étrangère et de Sécurité de l’Union Européenne - Le Cas de l’exYugoslavie’, (1995) n° 392 RMCUE 557.
EU–FRY, 25 April 2001, OJ 2001 L125/2; EU–FYROM, 31 August 2001, OJ 2001 L241/2; EU–Albania,
28 March 2003, OJ 2003 L93/50.
Council doc. 15711/02, 17 December 2002.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
The experiences gained in the course of the first few EU crisis management
missions highlighted the need to streamline the conclusion of status of forces
agreements in order to facilitate their early entry into force. In 2005, the Council
adopted an EU Model SOFA and an EU Model SOMA to this end.25 In doing so,
the Council followed the broad example set by the UN Model SOFA of 1990,
which was drawn up to ‘serve as a basis for the drafting of individual
agreements to be concluded between the United Nations and countries on
whose territory peace-keeping operations are deployed.’26 However, unlike the
UN Model SOFA, which also serves as a template in operations where no United
Nations military personnel are deployed, the Council decided to deal with
military and civilian operations in two separate texts. While military and civilian
personnel raise different legal considerations, their circumstances do not differ to
such an extent as to make the adoption of two separate texts absolutely
necessary. Indeed, the majority of the provisions of the Model SOFA and the
Model SOMA are all but identical, especially following their revision in July 2007
and December 2008, respectively, which ironed out certain inconsistencies
between the two instruments.27
The EU Model SOFA and SOMA grant EU crisis management operations a
broad range of privileges in the host State. These include privileges commonly
“The EU Model SOFA and
found in similar status agreements, such as those relating to the crossing of
SOMA grant EU crisis
management operations a borders and movement within the territory of the host State, the installation and
operation of communication devices and equipment, and the repatriation of
broad range of privileges
deceased personnel and their personal property. Other privileges, such as the
in the host State.”
right to display the national flags and insignia of their constituent national
elements, are less common. Still others are in fact quite remarkable: thus both
the EU Model SOFA and SOMA require the host State to provide, free of charge,
facilities owned by private legal entities, if requested to do so by EU operations
for administrative and operational reasons. In addition, EU missions also benefit
from immunities similar to those enjoyed by diplomatic missions under the Vienna
Convention on Diplomatic Relations. Their facilities, archives and documents
and official correspondence are inviolable. Their facilities, furnishings and other
assets as well as their means of transport are immune from search, requisition,
attachment or execution, while the missions themselves, as well as their property
and assets, enjoy immunity from every form of legal process and are exempt
from national, regional and communal taxes.
25
26
27
Council doc. 8720/05, EU Model SOFA, 18 May 2005 and Council doc. 9847/05, EU Model SOMA,
7 June 2005 (both on file with the author).
UN doc. A/45/594, Model status-of-forces agreement for peace-keeping operations: Report of
the Secretary-General, 9 October 1990.
Council doc. 11894/07, EU Model SOFA, 20 July 2007 and Council doc. 17141/08, EU Model
SOMA, 15 December 2008.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
Individual members of EU crisis management operations too benefit from
extensive privileges and immunities. Most importantly, they are exempt from the
criminal jurisdiction of the host State under all circumstances and enjoy
immunity from its civil and administrative jurisdiction in respect of words spoken
or written and all acts performed by them in the exercise of their official
functions. Usefully, the EU model agreements not only reproduce the procedure
set out in the UN Model SOFA for determining whether or not an act in question
was committed in the performance of their official functions, but they also add
a clarification whereby a certification issued by the competent EU authorities to
this effect shall be binding on the host State. In addition, members of EU crisis
management operations enjoy a range of other privileges and immunities
typically granted to foreign personnel in similar circumstances. For instance,
they are not liable to any form of arrest or detention and no measures of
execution can be taken against them, except in civil proceedings not related
to their official functions.
Conclusion
The status of forces agreements concluded in the context of European
Security and Defence Cooperation reveal their most interesting facets when
viewed against the background of international practice as a whole. On the
one hand, they affirm international practice in two important respects. First, the
distinct content of the EU SOFA and the EU Model SOFA/SOMA confirms that
the legal status of foreign armed forces is not subject to a uniform legal regime
under international law, a point I have covered in more detail elsewhere in this
issue. Plainly, the concessions that the Member States of the EU were prepared
to make to each other in the EU SOFA are not appropriate to govern their
relationship with third countries in entirely different operational circumstances.
Second, subject to some notable exceptions, the substantive terms of the EU
SOFA and the EU Model SOFA/SOMA correspond closely to the terms of
comparable agreements, namely the NATO SOFA and the UN Model SOFA. This
congruence reflects more than just a lack of imagination on part of those who
drafted the EU agreements but may be understood to confirm the general
applicability of the legal arrangements contained in the NATO SOFA and the
UN Model SOFA to analogous operational circumstances.
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Normative Power Europe: Status of Forces Agreements in
the Field of European Security and Defence Cooperation
On the other hand, the EU’s continued reliance on the Vienna Convention
on Diplomatic Relations for inspiration in defining the legal status of its crisis
management missions is at odds with international practice. This merits a few
brief observations. First, the question as to whether or not the privileges and
immunities laid down in the EU Model SOFA and SOMA exceed what is
functionally necessary must be judged in its proper context. The EU Model SOFA
and SOMA may not appear particularly excessive when compared to the
jurisdictional arrangements annexed to the Military Technical Agreement
between ISAF and the Interim Administration of Afghanistan, yet they do
appear somewhat over the top when compared to the NATO SOFA. However,
these comparisons are of limited value since the instruments in question were
designed to apply in very different environments and for this reason are not
functionally equivalent. Status of forces agreements ‘come in a variety of sizes
and flavours’28 as Max Johnson has reminded us, and one should avoid
comparing apples and oranges.29 Second, the EU Model SOFA and SOMA raise
the question as to whether they reflect a sense of entitlement on part of the EU
to benefit from more extensive privileges and immunities as a matter of law or
merely as a matter of political concession. In other words, is EU treaty practice
motivated by opinio juris or by realpolitik? In the absence of evidence
supporting the former conclusion, the latter seems more likely. Third, even if on a
strict legal analysis the majority of the privileges and immunities set out in the EU
Model SOFA and SOMA do not go markedly beyond those found in the UN
Model SOFA, the fact that they echo the language of the Vienna Convention
on Diplomatic Relations may create a perception to this effect. Such a
perception may be sufficient to call into question their legitimacy in the eyes of
host States.
Dr. Aurel Sari
[email protected]
28
29
M. S. Johnson, ‘NATO SOFA: Enunciating Customary International Law or Just a Model, and
What Does the Future Portend?’, in H. Fischer et al. (eds), Krisensicherung und Humanitärer
Schutz - Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck (2004) 287,
at 291.
This is not always fully appreciated in the present context. Cf. R. Burke, ‘Status of Forces
Deployed on UN Peacekeeping Operations: Jurisdictional Immunity’, (2011) 16 J Conflict & Sec
L 63.
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13
General Principles of the NATO Claims Policy
Pierre Degezelle
Introduction
The purpose of this article is to outline the basic principles of the claims
practices within NATO. There are several texts which are applicable in different
situations. Each Member State has ratified the Agreements in a different way
with their own reservations. Furthermore, each Member State has to observe its
own national legislation and has its own administrative practices. Consequently,
it is impossible to cover all claims practices within NATO. There are as many
claims practices as there are Member States or NATO partners.
However, it is possible to present the basic principles concerning claims.
The first part of the article concerns claims practices on NATO territory or that of
its partners1, where article VIII of NATO SOFA is applicable.
The second part deals with the out-of-area claims practices, in the theatre of
operations.
Article VIII of the Agreement between the Parties to the North Atlantic
Treaty regarding the Status of their Forces signed in London on 19 June
1951 (NATO SOFA)
In order for NATO to be able to fulfil its collective defence duty, the
Member States have adopted an Agreement that incorporates all necessary
legal and administrative tools. In this respect, it is essential that the armed forces
can travel unhindered from one Member State to another and that the
relations with the authorities of the receiving States are regulated in a uniform
way. To allow the armed forces of the Member States to carry out their missions
in the best possible conditions, agreements have had to be made on matters
regarding, among others, travelling between states, the wearing of uniforms,
the possession of weapons, the tax status of members of the armed forces, the
relationships with the criminal courts, and finally, a system concerning claims
settlements, either for damages between States or for damages to third parties.
Partners must be understood as the countries that within the Partnership for Peace framework
have adhered to the NATO SOFA by way of the PfP SOFA.
1
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General Principles of the NATO Claims Policy
Article VIII deals with damage caused on NATO territory or
that of its partners.
Article VIII is based on the basic public international law principle of
jurisdictional immunity of states. A state is responsible for damage
caused by its organs or its employees in the execution of their duties.
When the damage is caused on its own territory, this does not pose
any particular problems with regard to contentious jurisdiction.
However, things get more complicated when an organ or an
employee of a sending state causes damage to a third party who is
a national of the receiving state. If the latter starts legal proceedings
against the sending State before the local civil courts in order to
obtain compensation for the damage caused by the sending State’s
organ or employee, the action could be declared inadmissible
because of the jurisdictional immunity of States. The same goes for
damage caused between Member States. Member States will not
summon each other before the local courts of a receiving State.
Article VIII offers a solution to third parties so that they do not
hit against the wall of jurisdictional immunity. It also settles any
disputes between Member States. Paragraphs 1, 2, 3 and 4 of Article
VIII provide for a waiver of claims between Member States for any
damage caused between armed forces. The Member States thus
waive all claims against any Member State for damage to any
property used by the armed forces (with some nuances with regard
to vessels) or for injury or death suffered by any member of its armed
forces while such member was engaged in the performance of his
official duties. It occurs quite often that during a joint exercise a
vehicle of the armed forces of a sending State damages a vehicle of
the receiving State or that of another sending State. In this case, any
claim for the damage suffered is out of the question. On the basis of
the same principle, a Member State cannot, for instance, demand
compensation from another Member State for medical costs that it
had to pay to treat a member of its personnel.
Paragraph 2 provides for a kind of mini-waiver for damage
below a certain amount caused to property owned by a Member
State that is not used by the armed forces. According to paragraph
2, an arbitrator shall determine liability and assess the amount of
damage. As far as I know, this has never occurred. What types of
claims can be involved? For instance, in Belgium a US serviceman
working at the entrance gate to the US embassy in Brussels had
operated the security poles incorrectly and he damaged the vehicle
of the Minister of Justice who was visiting the embassy. The Belgian
claims office had a hard time explaining to the Belgian Ministry of
Justice that, since the repair costs for the vehicle were below $ 1,400,
the US was not going to reimburse the costs.
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“The Belgian claims office
had a hard time explaining
to the Belgian Ministry of
Justice that, since the
repair costs for the vehicle
were below $ 1,400, the
US was not going to
reimburse the costs.”
15
General Principles of the NATO Claims Policy
The waiver principle might be frustrating to some but it is very
practical as far as operational capability and interoperability are
concerned. Moreover, this principle has also been used for out-ofarea damage (see point 3).
Paragraph 5 determines the procedure in case of third party claims.
It applies to acts and omissions “of members of a force or civilian
component done in the performance of official duty, or any other
act, omission or occurrence for which a force or civilian component
is legally responsible”.
Paragraph 5 allows the receiving State to be substituted to
the sending State in its relations with the injured third party. On the
basis of paragraph 5, in some receiving States according to national
law, the third party can go as far as to file legal action before its
national courts against the receiving State instead of against the
sending State. How does this happen in practice? The third party
sends its claim to the receiving State, which deals with the claim,
indemnifies the third party, and recovers 75% of the amount paid
from the sending State. But the receiving State could also consider
that the sending State cannot be held liable in which case it will
refuse to pay. There are certain advantages to this procedure.
First, the injured third party can apply to a national authority to file his
claim, i.e. to the claims office of the state of which he is a national or
in which he resides. The claims office of the receiving State is much
more accessible than the sending State which is by definition located
abroad.
Secondly, the sending State is generally not familiar with local
law nor with the practices in the field of tort law, insurances, etc. The
fact that the receiving State can be substituted to the sending state
ensures that the compensation procedure can proceed smoothly.
Article VIII provides that “claims shall be filed, considered and settled
or adjudicated in accordance with the laws and regulations of the
receiving State […]”. Thus it is definitely local law that needs to be
applied. The Agreement reflects the general principle of lex loci
delicti.
When the third party has been paid compensation, the
receiving State recovers 75% of the amount paid to the third party
from the sending State. 25% of the amount remains at the expense of
the receiving State. Because of the fact that it has to pay part of the
amount, the receiving State is obliged to deal with the claim as
diligently as possible while best defending the interests of the sending
State.
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General Principles of the NATO Claims Policy
The “Article VIII system” is based on trust and reciprocity. The
receiving State sovereignly decides on any liability of the sending State and
fixes the amount of compensation. The receiving State does not have to
submit the matter to the sending State nor ask for its prior authorisation.
Indeed, according to Article VIII, paragraph 5 (b)(c): “[…] the receiving
State may settle any such claims, and payment of the amount agreed upon
or determined by adjudication shall be made by the receiving State in its
currency; such payment […] shall be binding and conclusive upon the
Contracting Parties […]”. In practice, the receiving State will ask the sending
State for the “on duty attest” in order to know if the member of the force was
on duty at the time of the facts or, more precisely, if the damage was
caused in the performance of official duty. The nuance is important. For
instance, a Belgian serviceman on exercise in Sweden can administratively
be considered to be on duty 24/7. If he injures someone in a fight in a disco
the night before he returns to Belgium it will be difficult to maintain that the
damage was caused in the performance of official duty.
It is quite important to know whether an element of a force was on
duty at the time of the facts. In the event that the element of the force is
considered as being on duty at the time of the facts, the procedure
described in paragraph 5 applies. Otherwise, paragraph 6, which is a
procedure known as ex gratia, needs to be applied. As mentioned above, in
principle, the sending State determines if its personnel member was on duty,
even if in practice this is challenged by some Member States. When there is
a dispute and the case is brought before the courts, the judicial authorities of
the receiving State shall at the end determine whether or not the damage
has been caused in the performance of official duty.
Connected with the issue regarding the performance of official duty,
is the concept of the NATO mission. Is article VIII only applicable to damage
that has been caused within the framework of a NATO mission? There are
not many legal precedents concerning this issue. However, the Luxembourg
courts have made a very broad interpretation of the concept of the NATO
mission2. The Agreement would only be applicable to NATO missions, but
these have to be interpreted very broadly. A comment of the judgment in
question even stated that it is not specified anywhere in the Agreement that
it would only apply to NATO missions.3
This involved a case brought before the Luxembourg courts due to an accident in the Grand
Duchy of Luxembourg where a Belgian military aircraft had hit an antenna used for television
broadcasts.
3 Jean-Claude Meyer, Revue Belge de droit International 1990/2, Ed. Bruylant, Brussels, p 504.
2
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General Principles of the NATO Claims Policy
Paragraph 6 concerns damage arising out of acts or omissions
not done in the performance of official duty. If there is no link to the
performance of official duty, the sending State as employer cannot be
held responsible for the damage. In this case, the third party has to
confront the person liable alone. However, paragraph 6 offers a solution
by proposing an ex gratia compensation procedure. The third party can
file a claim in the receiving State who will consider the claim and assess
compensation. The receiving State informs the sending State of the
compensation amount which according to paragraph 6 should be
considered as a full satisfaction of the claim. The sending State decides
whether or not it will offer an ex gratia payment. If the sending State
decides to pay the third party “in full satisfaction of the claim” it will do it
directly to the claimant. This procedure does not prevent the third party
from starting proceedings against the member of the force before the
civil courts of the receiving state if he finds that he has not been fully
compensated. In this case and in accordance with paragraph 9, the
sending State shall not claim immunity from the jurisdiction of the courts
of the receiving State for a member of the force who committed a
tortuous act outside of the performance of his official duties. Paragraph
9 should be read in conjunction with paragraph 5(g) which states that
“a member of a force or civilian component shall not be subject to any
proceedings for the enforcement of any judgment given against him in
the receiving State in a matter arising from the performance of his
official duties”. Reading paragraphs 5(g) and 9 together clearly shows
that the immunity from the jurisdiction of the Member States and the
concept of acts arising from the performance of official duty are the
cornerstones of Article VIII.
By way of conclusion of this part with regard to Article VIII, I would
like to make two observations. The first one involves the concept of
interoperability of the armed forces. It happens more and more that the
equipment of one Member State is used by another Member State, that
a Spanish vehicle, for instance, is driven by a Belgian driver. This might
complicate the compensation system of third parties. Who will be
responsible and have to pay the compensation, the user or the owner?
In these cases paragraph 5 (ii) and (iii) can offer a satisfying solution.
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General Principles of the NATO Claims Policy
Secondly, whereas Article VIII paragraph 5 of the NATO SOFA proposes
a compensation procedure for third parties when a member of a force or a
civilian component is responsible for tortuous acts, no provision is made for
recoveries payable by third parties who are responsible for damage to sending
States. It could be considered that the Member States help each other when a
third party causes damage to the sending State. The receiving State could also
play a part in these cases, since it is this state that has the necessary expertise
to consider the settlement of a claim against a third party who is its national or
resident.
Operational Claims
“Apart from the Non-Paper,
there are also provisions
concerning claims in each
SOFA concluded with the
host States on theatre of
operations.”
Operational claims must be understood here as claims that are
connected with the stationing of troops in a host state and not as claims
connected to war damage or claims arising out of breaches of international
humanitarian law.
The founding text of operational claims is the “NATO Claims Policy for
Designated Crisis Response Operations”. This document does not have any
binding legal force and is described as the “General Claims Policy Non-Paper”
(hereafter Non-Paper). The text has been drawn up by the Ad Hoc Working
Group of Legal Experts and has been approved by the Political Committee.
Apart from the Non-Paper, there are also provisions concerning claims
in each SOFA concluded with the host states on theatre of operations.
The Non-Paper reflects the general principles of the NATO policy with
regard to claims on theatre of operations. According to these principles, the
TCNs and the NATO Operational Headquarters should settle the claims from
third parties. Furthermore, they determine a waiver between TCNs and
between TCNs and the operational headquarters for material damage and for
injury or death.
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General Principles of the NATO Claims Policy
However, some claims cannot be considered for compensation:
1. Claims arising from combat, combat-related activity, or operational
necessity,
2. Contractual claims, which are dealt with by the TCN that has
concluded the contract in question,
3. Claims from the receiving State for damage to members of its forces.
Each TCN is responsible for settling its own claims, i.e. claims for damage
for which it is responsible on the basis of local law or local customs. It is not
always easy to determine responsibility or fix the compensation amount on the
basis of local customs. It is then up to the Claims Officer or LEGAD to use their
imagination to find clues in the local laws or customs of the host nations.
An efficient claims policy offers several advantages. It can have a
positive impact as far as force protection is concerned. When the compensation
is delayed, the third party usually comes to the gate “very regularly” to demand
his payment. This could cause a security problem in the long term. A fair claims
policy can have positive effects on image and can calm down the local
population that could be hostile. However, attention must be drawn to the
importance of having a relatively uniform claims policy between TCNs in order to
avoid discrepancy between the practices of the various nations. It can be useful
that the TCNs communicate with one another on this subject.
Finally, a good claims policy is only fair. On the basis of the SOFA with the
host state the international force generally enjoys jurisdictional immunity both on
a criminal law and a civil law level. Consequently, the host State has a right to
expect that the members of the force respect the local laws and customs and
that any damage will be fairly compensated.
Conclusion
Questions with regard to claims are an integral part of NATO activities. Each
MOU, TA, SOFA includes, or should include, claims clauses, if only to point out the
application of Article VIII if the activity takes place on NATO territory.
In the absence of such a clause the question of the application of Article VIII
should in any case be put forward. As treaty Article VIII offers an essential and
strong solution to the problems related to the settlement of damage.
It is even more important to insert clauses on claims in agreements with
regard to out-of-area activities since in these cases Article VIII does not apply.
This should not pose many problems for damage regarding third parties because
we can assume that the Member States will fulfil their obligations in accordance
with international law. On the other hand, for damage between Member States
it can be useful to refer to the General NATO Claims Policy Non-Paper in MOU’s
or TA’s. Even though the document does not have any real legal force, it
establishes the principle of the waiver as an administrative practice, even as a
custom.
Pierre Degezelle,
Legal Advisor, Belgian Claims Office
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20
NATO-Russia Relations: A Study in Reservations
Natalia Neufeld
Introduction: Agreement among the States Party to the North Atlantic
Treaty and other States participating in the Partnership for Peace
regarding the Status of their Forces
Russia, like 421 other NATO Allies and Partners signed and ratified the
Agreement among the States Party to the North Atlantic Treaty and other
States participating in the Partnership for Peace regarding the Status of their
Forces (PfP SOFA) on April 21st, 2005. This Agreement entered into force on
September 27th, 2007.
The PfP SOFA is a multilateral agreement between NATO Member States and
countries participating in the Partnership for Peace (PfP). All the NATO Allies and
24 Partners have signed or acceded to the PfP SOFA since it was issued on June
19th, 1995.
Provisions of Agreement among the States Party to the North Atlantic
Treaty and the Other States Participating in the Partnership for Peace
Regarding the Status of Their Forces
As a transition document, the Agreement among the States Party to the
North Atlantic Treaty and the Other States Participating in the Partnership for
Peace Regarding the Status of Their Forces extends beyond the scope of
application of the Agreement among the States Party to the North Atlantic
Treaty regarding the Status of their Forces (NATO SOFA) to cover operations in
the Partnership for Peace Partner States and vice versa. This means in practice
that the parties to the PfP SOFA exactly identify what the status of their forces
will be and what privileges, facilities and immunities will apply to them when
they are present on the territory of another state that is party to the PfP SOFA
and put these provisions into another bilateral agreement.
Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Canada,
Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary,
Iceland, Italy, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Luxemburg, Macedonia, Moldova,
Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Slovak Republic, Slovenia,
Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States, Uzbekistan.
1
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NATO-Russia Relations: A Study in Reservations
The Agreement does not address the issue of the right of foreign forces
to be present in the territory of another state. This will be defined in separate
arrangements based on the PfP SOFA. Consequently, the PfP SOFA becomes
applicable only after an individual, bilateral agreement between the sending
and the receiving States has been signed. In addition, all States that are party
to the PfP SOFA grant the same legal status to forces of the other parties when
these are present on their territory. Therefore, once there is a common
agreement, for example, regarding a certain operation, training or exercise,
the same set of provisions will apply on a reciprocal basis. A common status
and an important degree of equal treatment will be reached which will
contribute to the equality between Partners. 2
It should be noted, that the NATO SOFA limits the modifications made by the
parties in a separate agreement to aspects that are not addressed in the NATO
SOFA.3 The PfP SOFA, however, has a less restrictive wording. Its Article IV
declares that: “the present Agreement may be supplemented or otherwise
modified in accordance with international law.” In this sense, the rules codified
in Article 41 of the Vienna Convention on the Law of Treaties 4 are relevant. In
light of this Article, parties to the PfP SOFA have the right to modify the
Agreement between themselves alone and under the following conditions:
1. The modification must not be prohibited by the PfP SOFA.
2. It must not affect the enjoyment by the other parties of their rights under
the PfP SOFA or the performance of their obligations.
3. It must not relate to a provision the derogation of which is incompatible
with the effective execution of the object and purpose of the PfP SOFA
as a whole.
4. The parties in question shall notify the other parties of their intention to
conclude the agreement and of the modification to the PfP SOFA for
which it provides.
2 http://www.nato.int/cps/en/natolive/topics_50086.htm?selectedLocale=en
3 See Preamble of the Agreement between the Parties to the North Atlantic Treaty
Regarding the Status of their Forces; Lazareff, Status of Military Forces Under Current
International Law, p. 73-75.
4 Vienna Convention on the Law of Treaties 23 May 1969, UNTS Vol. 1155, 331.
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NATO-Russia Relations: A Study in Reservations
Reservations to the Agreement among the States Party to the North
Atlantic Treaty and the Other States Participating in the Partnership for
Peace Regarding the Status of Their Forces
“The fact that Russia did
not name the statement a
reservation has (in line with
the falsa demonstratio
non nocet) in principle no
effect on the status of this
statement. In fact it has to
be examined in the light
of the Vienna Convention
on the Law of Treaties.”
Besides the modifications within a separate Agreement, the parties to
the PfP SOFA can influence the provisions of this Agreement with reservations.
Even though the PfP SOFA does not provide wording that explicitly allow
reservations, it does not prohibit them either.
Russia’s statement upon ratification
Russia’s instrument of ratification of the PfP SOFA was accompanied by a
statement which provided Russia’s understanding of the provisions of the
Agreement.5 Among other provisions, Russia stated that it intended to widen the
scope of jurisdiction of the Russian Federation beyond the provisions of Article VII
(2) (c) of the Agreement. Furthermore, the Russian statement concerning Article
VII (4) of the Agreement widened the scope of jurisdiction of a sending State
over persons who are nationals or ordinarily residents in the receiving State.
Additionally, Russia expressed a claim for duly certified translations of all
documents and materials to be sent to their competent authorities within the
framework of the Agreement.
At this point, it should be clarified whether this statement can be considered
a reservation or just a statement. The fact that Russia did not name the
statement a reservation has (in line with the falsa demonstratio non nocet) in
principle, no effect on the status of this statement. In fact, it has to be examined
in the light of the Vienna Convention on the Law of Treaties.
According to the definition provided by Article 2.1 (d) of the Vienna
Convention, a reservation is “a unilateral statement, however phrased or named,
made by a state, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that state”. Reservations also have
to be distinguished from other statements and interpretative declarations that
are made with regard to a treaty but are not intended to have a legal effect,
such as understandings, political statements or interpretative declarations. By
providing such an interpretative statement, a state aims to clarify what meaning
or to what extent it affirms a given treaty or some of its provisions. These
statements have no binding consequences; they can be regarded as political
manifestations for a primarily internal effect that is not binding upon other
parties.6 Interpretative declarations can be made at any time. According to
Article 23 (2) of the Vienna Convention however, the declaration of a reservation
must be firmly confirmed by the reserving state when ratifying, accepting, or
approving the treaty. In other words, the qualification of a unilateral declaration
as a reservation or an interpretative declaration depends on the legal effects it
intends to produce. This differentiation is often very difficult. In cases where a
State does not define its statement as reservation or interpretative declaration, it
is sometimes the depositary that chooses one of the two designations when
communicating the declaration to the other treaty parties.
5
6
www.state.gov/documents/.../91332.pdf
Malcolm N. Shaw, International Law, p. 822.
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NATO-Russia Relations: A Study in Reservations
In light of the above mentioned rules it can be said that, even though the
Russian comment has been called a “statement”, it can be considered to be a
reservation, because it meets the criteria of the definition. The comments widen
the scope of certain provisions of the Treaty and create new obligations for other
parties to the Treaty by making Russian translation of documents compulsory.
Russia obviously wants the other parties to be bound by its modifications of the
Treaty. The Russian declaration was not intended to be only internally binding but
to adjust the relation between Russia and the other States under the PfP SOFA.
Additionally, the United States as the depositary of this Treaty defined Russia’s
statements as reservations when informing the other States.
Objections and acceptance
Russia was one of twelve States that provided reservations at the moment of
signing, accession to, or ratification of the PfP SOFA. But only Russia’s reservations
were objected to by several nations. An objection is defined as “a unilateral
statement, however phrased or named, made by a State or an international
organization in response to a reservation to a treaty formulated by another State
or international organization, whereby the former State or organization purports
to exclude or to modify the legal effects of the reservation, or to exclude the
application of the treaty as a whole, in relations with the reserving State or
organization.”7 According to Article 20 (5) of the Vienna Convention on the Law
of Treaties, the objection has to be expressed by the State within a reasonable
period of time after it has been notified of the reservation. A period of twelve
months is considered as reasonable.8 According to the principle in majore ad
minus, the objecting State can preclude the entry into force of part of the treaty,
or of the treaty as a whole. It can do so unilaterally and another agreement of
the reserving State is not required.9
Report of the International Law Commission, Sixtieth Session (5 May-6 June and
7July-8 August 2008): online at: http://untreaty.un.org/ilc/reports/2008/2008report.htm
8 Ibid.,
9 Mark E. Villinger, Commentary on the 1969 Vienna Convention on the Law of Treaties,
pp. 290 – 291.
7
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NATO-Russia Relations: A Study in Reservations
“Most of the objecting
nations considered
Russia’s reservations to be
incompatible with the
provisions of the NATO
SOFA and some of them
complained that the
requirement of translations
would create a new
obligation for the other
nations.”
In this concrete case some nations objected to the reservations as a
whole, some just to parts of them. Most of the objecting nations considered
Russia’s reservations to be incompatible with the provisions of the NATO SOFA
and some of them complained that the requirement of translations would
create a new obligation for the other nations.
On the other hand, twelve nations did not react to the reservations made by
Russia at all. They neither accepted nor rejected the reservations expressly.
A consolidated view of these different statements made by the other parties of
the treaty indicates that there are three main groups:
1. Nations like Georgia, Iceland, Kazakhstan and several others did not
provide any statements whether they accept Russia’s reservation or not.
2. Other nations such as Latvia, The Kingdom of the Netherlands, Portugal
and Slovenia objected to the reservations but pointed out that the
Agreement shall bind them and Russia in its original form and Russia shall
not benefit from its reservations.
3. The Kingdom of Great Britain objected to the reservations and stated
that the Agreement shall not apply between Russia and Great Britain.
These circumstances raise the following questions regarding the impact of
these reservations on the relations between the parties to the PfP SOFA and
Russia:
1. Did Russia become a party to the agreement?
2. If so, what is the effect of the PfP SOFA between Russia and the
a. Parties to the PfP SOFA that did not object or accept Russia’s
reservations expressly
b. Parties that objected to the reservation, while stating that the
agreement shall be effective in its original form
c. United Kingdom
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NATO-Russia Relations: A Study in Reservations
Effect of Russia’s reservations on the relations with non-objecting states
Article 20 (4) (c) of the Vienna Convention 10 states that “an act expressing
a State’s consent to be bound by the treaty and containing a reservation is
effective as soon as at least one other contracting State has accepted the
reservation.” unless the reservation is expressly allowed by the treaty. Read
together with Article 20 (4) (a), this means that any such acceptance of the
reservation by one State lets the reserving State become a party to the treaty in
relation to that State.11 It leads to bilateral treaty relations between the
reserving and the accepting States.
Acceptance of a reservation can be expressed in writing (Article 23 (1)), or
tacit, or even implied (Article 20 (1)-(3) and (5)). In this concrete case, none of
the States accepted Russia’s reservations expressly, but several States did not
provide a statement at all. The silence of the parties is considered to be a sign
of acceptance if they do not express a rejection within a twelve month period
after they are notified of the reservation.12
This fact cannot be called into question by an objection formulated
several years after the treaty has entered into force between the two States
without seriously affecting legal security. In practice, however, disagreement
between the parties on the field of the status of visiting forces will be clarified
within a separate agreement in preparation of sending or receiving forces.
A further question is: what does the acceptance of the Russian
reservation mean for the relation between Russia and the accepting State and
how does this relation affect the other relations under the PfP SOFA? The effect
of reservations is outlined in Article 21 of the Vienna Convention. This Article
states that “a reservation established with regard to another party in
accordance with Articles 19, 20 and 23:
(a) modifies for the reserving State in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent of the
reservation; and
(b) modifies those provisions to the same extent for that other party in its
relations with the reserving State.”
In this case, it means that all the 17 States that did not expressly object to
Russia’s reservations approved them and regarded Russia as part of the
agreement. The PfP SOFA and the reservations entered into force between
Russia and these parties. The limitation issued by the reserving State applies to
both parties to an equal extent.
These relations, however, do not effect Russia’s relations with the other States
party to the agreement. Article 21 states that “the reservation does not modify
the provisions of the treaty for the other parties to the treaty inter se.”
Vienna Convention on the Law of Treaties, Vienna Mai 23. 1969; online at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
11 Mark E. Villinger, Commentary on the 1969 Vienna Convention on the Law of Treaties, pp. 292.
12 Ibid., pp. 293., pp. 290 – 291.
10
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NATO-Russia Relations: A Study in Reservations
Effect of Russia’s reservation on the relations with objecting states
While examining the effect of the reservations and objections on the
relations between Russia and the objecting parties to the PfP SOFA, the
question is whether a reservation incompatible with the aim and purpose of a
treaty is to be considered as lack of agreement or whether it is only the
reservation itself which has to be considered null and void. In the first case, the
PfP SOFA would not come into force between Russia and the objecting States
at all. In the other case, the Agreement would be valid between these parties
in its original form.
Article 20 (4) (b) of the Vienna Convention states that “an objection by
another contracting State to a reservation does not preclude the entry into
force of the treaty as between the objecting and reserving States unless a
contrary intention is definitely expressed by the objecting State.” The effect of
the objection is that the provisions to which the reservation relates do not apply
to the extent of the reservation as between the State which has made the
reservation and the one which has raised an objection. Furthermore, the mere
fact that the reason for the objection is that the reservation is considered to be
incompatible with the object and purpose of the treaty is not sufficient to
exclude the entry into force of the treaty between the reserving and the
objecting State.
Insofar as the States party to the PfP SOFA objected to the Russian
reservation and based their objections on such incompatibility, while clarifying
at the same time that the finding did not prevent the treaty in its original form
from entering into force as between them and the author of the reservation,
Russia does not benefit from its reservations. According to this understanding,
the PfP SOFA entered into force between Russia and these states in its original
form.
Effect of Russia’s reservations on its relations with the United kingdom
The United Kingdom objected to the Russian reservations and pointed out
that it considered “that the entry into force of the Partnership for Peace
Agreement between itself and the Russian Federation is precluded. Accordingly
the Partnership for Peace Agreement does not apply between the United
Kingdom and the Russian Federation.”13According to the principles of Article 20
(4) (b) of the Vienna Convention the entry into force of the treaty between the
reserving and the objecting State is precluded if the latter definitely expresses its
will to do so. In this case, even though Russia and The United kingdom are part
of the PfP SOFA, the Agreement did not enter into force between them.
Fourth Supplementary List of Ratifications, Accessions, Withdrawals, etc., for 2008, Presented to
Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her
Majesty, September 2009, p. 13.
13
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NATO-Russia Relations: A Study in Reservations
Conclusion
The PfP SOFA has greatly facilitated the military-to-military and other
practical cooperation between Russia and NATO Member States and partner
countries. In particular, it has made it easier to deploy forces to participate in
joint operations and exercises. It has also paved the way for Russian logistical
support to the NATO-led International Security Assistance Force in Afghanistan.
The acts of cooperation and the concluded agreements between the parties
are visible commitments of the former adversaries embracing a more peaceful
and secure future and moving towards equal partnership. The next crisis will
show how solid the partnership and its legal framework actually are.
Natalia Neufeld
Voluntary National Contribution Intern
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The Evolving Role of the Legal Advisor in Support of
Military Operations*
Thomas E. Randall
Introduction
This brief contribution is meant to address the theme of the 2011 Military
Law and the Law of War Review’s celebrative panel, titled ‘The Role and
Responsibilities of Legal Advisers in the Armed Forces: Evolution and Present
Trends.’ In this respect, I will begin by making some comments regarding the role
of legal advisers to military commanders, in particular the trends I have
observed during thirty years of practice, both as a U.S. Navy Judge Advocate,
and as a civilian legal adviser to U.S. and NATO commanders. I will then take the
liberty of offering some ‘pointers’ to the up-and-coming legal advisors in military
headquarters today, and will focus on some of the unique challenges faced by
legal advisors to NATO commanders, based upon the experiences I have had,
and what I see as ways in which to increase our effectiveness and value to our
commanders.
The Evolution of the Legal Adviser’s Role
Like many readers of this article as well as the members of the
International Society for Military Law and the Law of War, I ‘cut my teeth’ as a
young judge advocate on the practice of military justice. This was in the late
1970's when the practice of ‘operational law,’1 was clearly in its infancy within
the U.S. military. Initial training for aspiring judge advocates focused, in addition
to military justice, on administrative law, claims, and legal assistance. For most
commanders, these areas were those in which they expected their lawyers to
render assistance. In those days, having a lawyer involved in operations, or
better, as one would say in the Navy, having a lawyer ‘on the bridge,’ was a
rare phenomenon.
In the mid-1980's, this began to change rapidly, as all the U.S. armed
services began to offer funded educational opportunities at civilian universities,
and within service legal schools, to study international law and obtain a masters
degree in this field. I was one of those fortunate enough to have been selected
for such training. After I obtained my masters degree, the Navy Judge
Advocate Corps assigned me a special code that identified me as qualified for
international law positions. Many of these entailed providing legal advice to
military commanders regarding such topics as Law of the Sea, Law of Armed
Conflict, and national security law. My overseas duties as an international law
attorney all took place within Europe, where I developed specialized
experience in the European theatre and NATO environment.
In Print 50/1-2 MILITARY LAW AND THE LAW OF WAR REVIEW (2011), pp. 17-36. Will be and available
on Hein Online as of 31 August, 2012
*
In using the term ‘operational law,’ I am referring to that area of legal practice that encompasses
the law of armed conflict (LOAC), both conventional and customary, as well as all other legal
matters that relate to conducting a military operation consistent with legal principles.
1
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The Evolving Role of the Legal Adviser in Support of
Military Operations
During this time, U.S. military commanders also began to take a different
view towards their legal advisers, or staff judge advocates, as they are known in
military parlance. No longer were they seen as part of the support division,
primarily addressing matters of discipline, legal assistance, and claims. More
and more the legal advisers came to be regarded by their commanders as
essential members of their operations teams. The lawyer now was ‘on the
bridge,’ or in the battle staff, privy to the same intelligence reports, operational
plans, and command decisions as were the ‘operators.’ They were consulted
as important members of the team regarding the planning and execution of
operations.
My First ‘Operational’ Experience – U.S. European Command
I experienced this evolution in the legal adviser's role first hand during
my initial overseas tour as a newly designated international law attorney. I was
assigned to the U.S. European Command (USEUCOM) in Stuttgart, Germany,
one of the joint combatant commands for the U.S. forces overseas. These
commands take their orders from the President, as Commander-in-Chief,
through the Secretary of Defence, to carry out military operations. The military
services (Army, Navy, and Air Force) are charged with providing forces, land,
sea, and air, to the combatant commanders to execute these military
operations.
In 1988, when I began my duty with Headquarters, USEUCOM, the Cold
War was still in full swing. The Berlin Wall was intact, and most of our military
planning was devoted to defending the Fulda Gap and Western Europe from
an all-out assault by the forces of the Warsaw Pact. Every year our exercise
program included the ‘Wintex-Cimex’, a two-week, worldwide Command Post
Exercise in which allied forces simulated fighting World War III. Our role at
Headquarters EUCOM was to first make an inglorious, but probably sensible,
retreat from Stuttgart to an underground bunker in England, from which we
would direct the efforts of the U.S. European Forces to fight the war.
I was the only legal representative in the bunker from the EUCOM Legal
Office, and managed, after some persuasion, to obtain a small workstation with
computer and secure phone, in the operations centre. I was also an attendee
at the daily morning and evening OPS and INTEL updates for the commander,
and therefore had full access to all essential information regarding the exercise.
I will always recall, however, a visit made to our three-story underground facility
by our Deputy Commander, a seasoned four-star Air Force General. After
taking about an hour-long guided tour of the complete bunker, he finished in
the OPS centre where I was located with my colleagues. The General, who was
being shepherded on the tour by our two-star Director of Operations, was
asked if he had any questions about the facility or our operation. He had only
a single question: ‘Why is there a lawyer in the OPS centre?’
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The Evolving Role of the Legal Adviser in Support of
Military Operations
“If there was any doubt,
however, regarding the
lawyer's role in providing
operational law advice to
the U.S. European
Commander, that was
definitively resolved about
three years later, in early
April 1991.”
As it can be imagined, I was crestfallen by his inquiry, wondering why he
could not see the value legal advice could play in carrying out such a major
exercise (or operation). I was quickly heartened, however, in that I did not
have to say a word on my behalf regarding the lawyer's role. The Rear Admiral
Director of Operations immediately responded to the four star, explaining how
essential it was to have on-the-spot legal advice regarding use of force, Law of
Armed Conflict, air and aea operations, chemical weapons, prisoners, and so
forth. Consequently, the lawyer needed to have access to the moment-bymoment flow of information that being in the OPS Centre would provide.
Thus what I witnessed, over twenty years ago, was, in essence, a
‘passing of the baton.’ And the understanding of the lawyer's role in military
operations, from the older generation of military leadership, to a newer and, I
would like to think, a more enlightened up-and-coming military leadership.
Legal advisers were no longer to be relegated to the back room support cell,
ready to draw up a power of attorney, or prepare a disciplinary proceeding
when summoned to do so. They would be front-line players in advising the
commander in the conduct of operations.
New Types of Conflicts – Rapid Evolution of the Legal Adviser’s Role
If there was any doubt, however, regarding the lawyer's role in providing
operational law advice to the U.S. European Commander, that was definitively
resolved about three years later, in early April 1991. At that time, I was nearing
the end of my three-year military tour of duty in the USEUCOM Legal Office,
and, as a newly promoted Navy Captain Judge Advocate, was serving as the
acting Legal Adviser to USCINCEUR, as he was known back then. The Berlin
Wall was now gone, the Cold War ended, but other areas of conflict now
loomed.
In the first ‘Gulf War,’ the U.S.-led coalition, commanded by General
Schwarzkopf, had just defeated the Iraqi forces, driving them out of Kuwait and
back into Iraq. A cease-fire was negotiated, which, among other things,
established one of the first no-fly zones, this one over Iraq, applicable to fixedwing aircraft. Although the combat had been led by the U.S. Central
Command (USCENTCOM), our command had provided support, from our
bases in Ramstein, Germany, and elsewhere from within the European Theatre.
So it had been a busy time for us as well, and when the war concluded in
March 1991, we all thought we could stand down and take a break.
Unfortunately, it was not so.
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The Evolving Role of the Legal Adviser in Support of
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On 6th April 1991, a Saturday, I received a call at 6 a.m. summoning me to
the EUCOM Battle Staff. We were standing up a new operation, and in this one,
our command would have the lead. Sadam Hussein, who remained in power after
the conflict, was mercilessly attacking the Kurdish population of northern Iraq,
using primarily his helicopters, which were not prohibited from flying under the
CENTCOM-negotiated no-fly zone. The Kurds faced death from above, and
starvation on the ground, as they were driven north from their homes across the
border into the Turkish mountains, where they faced an uncertain fate. In the
media it was suggested that the Kurds had risen up in revolt against the Hussein
Regime at the instigation of U.S. President Bush (the first), who had reportedly
encouraged the people of Iraq to rebel, and, implicitly, if they did, they would
receive support from the U.S.2 Nonetheless, for various reasons, the Kurdish
population did rise up against Saddam Hussein and were now suffering horrendous
consequences as a result of their brief and failed rebellion. A massive humanitarian
disaster was unfolding.
So, at the beginning of April 1991, the President, through the Secretary of
Defence, directed my commander, USCINCEUR, to commence an operation to
provide security and humanitarian relief to the Iraqi Kurds, who were fleeing north
into Turkey. The operation would be conducted out of south-eastern Turkey (with
the consent of the Turkish Government), and at first would be carried out
completely from the air. Most importantly, it was critical for both political and
humanitarian reasons that the operation could commence immediately, i.e. within
24 hours. The mode of providing relief in the initial stage, would be to parachute
food, water, and tents from low-flying C-130 Aircraft over northern Iraq to Kurdish
refugees on the ground. This had to be carried out in a secure environment, not
threatened by Iraqi aircraft, including helicopters or ground fire.
Within this context, I was summoned to the battle staff in the Operations
Centre. I was teamed up with a Navy aviation officer and directed to work out
the rules of engagement that would allow this operation to proceed safely and as
soon as possible. These ROE, and the skeletal OPLAN we would have time to
develop, would need to be blessed by the Joint Chiefs of Staff and Secretary of
Defence, on behalf of the President.
On February 15, 1991, before the conclusion of the first Gulf War, President Bush made the following
announcement on Voice of America Radio: ‘There is another way for the bloodshed to stop: And that
is, for the Iraqi military and the Iraqi people to take matters into their own hands and force Saddam
Hussein, the dictator, to step aside and then comply with the United Nations' resolutions and rejoin the
family of peace-loving nations’ (See Reuters, ‘War in the Gulf: Bush Statement; Excerpts From 2
Statements by Bush on Iraq's Proposal for Ending Conflict’, The New York Times, 16 February 1991,
http://www.nytimes.com/1991/02/16/world/war-gulf-bush-statement-excerpts-2-statements-bush-iraq-sproposal-for-ending.html). See also J.F. Burns, ‘Uncovering Iraq's Horrors in Desert Graves’, The New York
Times, 5 June 2006, http://www.nytimes.com/2006/06/05/world/middleeast/05grave.html (unless
indicated otherwise, all urls cited were last accessed on 26 January 2012).
2
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The Evolving Role of the Legal Adviser in Support of
Military Operations
My naval aviator colleague and I hit upon the only solution that
seemed feasible under these extreme circumstances. We needed to
establish a no fly zone of our own, over northern Iraq, and this one had
to encompass rotary, as well as fixed-wing, aircraft. This was the only
effective means we could devise that would ensure the safety of our
slow moving C-130s as they dropped pallets of supplies with parachutes
to the Kurds below. I will always remember the two of us sliding a ruler up
and down the map of Iraq until we found a suitable parallel of latitude
on which to establish the NFZ. 37 degrees was too high, 35 too low ... So
36, which seemed about right, was it. We also drafted rules of
engagement to attack any Iraqi anti-aircraft batteries above 36 degrees
north that proved to be a threat.
So with that, the two of us, a lawyer and an operator, without the
benefit of any overarching UN Security Council Resolution 3 and within
about three hours, created a ‘legal regime’ under which to initiate and
execute this humanitarian relief operation, which was designated as
‘Operation Provide Comfort.’ The operation began with the first few
flights taking place before the conclusion of that day, April 6 th, and
continued to run a number of years thereafter.4 Other nations5 and a
number of humanitarian relief organizations joined in the effort, which at
its peak, included the construction of ‘tent cities,’ i.e. large temporary
camps, in southern Turkey and northern Iraq, to shelter and care for the
Kurdish families. The No Fly Zone remained in effect throughout the
operation to continue to provide security over northern Iraq.
Significantly, no longer were there any generals asking why the
lawyer was in the operations centre. Indeed, since establishing a legal
regime for Operation Provide Comfort was critical for its immediate
execution and ultimate success, the role of the legal adviser proved to
be essential in that undertaking.
While the UN Security Council had passed a Resolution (UNSC Res. 688, 5 April 1991)
calling upon Iraq to end repression, and respect the human rights of its population, and to
allow access by international humanitarian organisations to the affected areas, it
contained no enforcement mechanisms authorizing intervention by other nations.
3
The operation, which morphed into ‘Provide Comfort II’ in July 1991, officially ended on 31
December 1996.
4
5
i.e. United Kingdom, Italy, France, Australia, The Netherlands, and Turkey.
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The Evolving Role of the Legal Adviser in Support of
Military Operations
The Legal Adviser’s Role Today
Now let's fast-forward the calendar twenty years to the present.
What is the legal advisor's role today?
For six months in 2011, during NATO's operation to enforce an
arms embargo, a no-fly zone, and to protect civilians in Libya, my legal
team at SHAPE, as well as lawyers throughout the operational chain of
command (including the Task Force Unified Protector, the Combined Air
Operations Centre, and the NATO Air and Maritime Component
Commands), conferred daily through all available channels: e-mail,
phone, VTC, and even occasional face-to-face meetings. We discussed,
debated, and sought consensus on a plethora of challenging legal
issues of critical importance to the operation. The commanders, i.e.,
Supreme Allied Commander Europe (SACEUR), Commander Joint Forces
Command Naples, and Commander Operation Unified Protector (OUP),
as well as the NATO Secretary General, relied extensively on their legal
advisers to resolve questions concerning interpretation of the U.N.
Security Council Resolutions, the arms embargo, enforcement of the no
fly zone, and use of force to protect civilians from attack or threat of
attack.
Even now, at the time of writing (September 2011), as a Strategic
Operations Planning Group at SHAPE prepares for NATO's future role in
the post-OUP operation, most likely to be in support of a UN operation to
stabilize and restore key functions within Libya, legal advisors will play an
essential part in interpreting and applying any new Security Council
Resolutions and in developing new Concepts of Operations, Operational
Plans, and Rules of Engagement for NATO forces.
In my thirty-year career as a judge advocate and legal advisor, I
have witnessed, and experienced, not so much of an evolution, but
rather a ‘revolution’ in the role of the attorney in advising the
operational commander. This process was perhaps summed up best by
one of my former USEUCOM Commanders who told me that as a young
Army Captain, he relied primarily on his operations officer, intelligence
officer, and logistician in carrying out his duties. As a general and
Combatant Commander, however, he now relied almost exclusively on
the advice of his Political Adviser, Public Affairs Officer, and the Legal
Adviser.
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The Evolving Role of the Legal Adviser in Support of
Military Operations
Some Tips for ‘Up-and-Coming’ Legal Advisers
On the whole, there are several ‘tips’ based on my experience
that I am pleased to offer to the many talented judge advocates and
civilian legal advisers who have worked for me, both at SHAPE and at U.S.
military headquarters.
“As the article points
out, a lawyer should
not be merely an
apologist for the
actions of his client.”
First, however, I would recommend all the legal professionals
serving in a military organization to read an excellent article 6 authored by
Mr. Stephen Tully in which he discusses the dilemma faced by legal
advisers to military commanders, who are confronted with a choice
between ‘getting it wrong,’ i.e., giving the commander the advice (s)he
would like to hear, albeit advice which is not in conformity with the law,
versus ‘being ignored,’ i.e., giving the correct legal advice, contrary to the
commander's desires, with the result that the commander may ignore it, or
avoid consulting with the legal adviser in future. Mr. Tully's thoughtprovoking article reminds me of the old joke about the lawyer whose
client asks him: ‘What time is it?’ The lawyer responds with his own
question: ‘What time would you like it to be?’
As the article points out, a lawyer should not be merely an
apologist for the actions of his client. While we have seen this occur at
higher levels of government, where the lawyers are dispatched to come
up with, i.e., invent, legal arguments, no matter how far-fetched, to
support questionable actions that have already occurred, this is a
practice that should be strictly avoided in the field of advising military
commanders. It is far preferable that we build confidence between
ourselves and our ‘clients’, be they the commander or other staff officers
who influence the commander's actions, so that they consult with us
before they take or recommend an action that must later be explained or
justified to the public or outside organizations. Our role should be to help
the commander shape his/her orders and guidance to conform to legal
principles while still allowing mission accomplishment. To achieve this goal,
I often encourage my supporting attorneys to follow a few suggestions.
First, they should not see themselves merely as ‘judges,’ as if sitting
on some international court, passing down rulings on the legal propriety of
actions or direction contemplated by our commanders or fellow staff
officers. I have known a few legal advisors who thought their duties ended
by simply opining, with some legal justification, that a certain proposed
action was legal or not legal. Then it was on to the next case. This
approach caused the legal advisor to be seen mostly as an obstacle,
someone to avoid if possible, and not someone whom a staff officer, or a
commander, could turn to for help.
S.R. Tully, ‘Getting it Wrong or Being Ignored: Ten Words on Advice for Government
Lawyers’, Vol. 7 New Zealand Yearbook of International Law 2009, pp. 51-83.
6
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The Evolving Role of the Legal Adviser in Support of
Military Operations
My view of the role of legal advisers is that they must be seen as part of
the team, whose ultimate goal is to accomplish a mission in a legally
supportable way. Therefore, if the initial proposal does not pass legal muster, a
good LEGAD should work with the proponent to reshape it as necessary, so
that it can be accomplished and legally defended. Admittedly this may not
always be possible, but in many cases a different approach is the key to
success.
Further, the legal adviser should not see his or her role as merely giving
advice. While they cannot take on the duties that are the responsibility of
others, lawyers have certain skills that are invaluable in assisting beleaguered
staff officers who may not have a good sense of how to achieve their goal or
that of the command. Legal advisers, with their special skills in drafting and
organizing, can often help an action officer devise and implement a plan to
move their task or project along to completion.
In the SHAPE Legal Office, we have been fortunate in being able to set
up within our office spaces a conference room, with an electronic Smart
Board, which allows us to coordinate meetings among staff officers, to
brainstorm projects, or refine draft memos, agreements, OPLAN's, ROE, etc.,
where we, as the lawyers, coordinate (but not replicate) the efforts of our nonlegal colleagues. This results in creating the confidence and trust that I
alluded to earlier, which encourages the staff to consult the legal office at the
inception of any staff project. They see us as part of the solution, not part of
the problem.
Attorneys on operational staffs, in giving advice, oral or written, must
always keep in mind that we are advising busy clients, general and flag
officers who have much on their plates to contend with, and decisions to
make that can have momentous consequences. In assisting them we must be
frugal in consumption of their time and attention, and deliver succinct,
unambiguous advice. In addition, as I often explain to my younger legal
colleagues, we must use a different writing style when advising a general, than
when writing to another lawyer. Extensive footnotes, legal citations, and Latin
phrases may be effective in the law reviews but not so in the written memos,
point papers, and other communications we send to the ‘front office.’ In this
respect, I advise my legal partners and assistants to follow two simple rules: a)
put the bottom line up front (BLUF), so there is no mistake regarding what you
recommend; and, b) resorting again to a time metaphor, tell the boss what
time it is, not how the clock works. If he or she needs more elaboration, they
will let you know.
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The Evolving Role of the Legal Adviser in Support of
Military Operations
Additionally, if a legal adviser recommends that a further action is
taken by the commander, (s)he should include the implementing
correspondence. For example, if I recommend that SACEUR write to the NATO
Secretary General to advise that fuel destined for areas controlled by proGaddafi forces may be intercepted at sea under UNSC Resolution 1973 7 as a
measure designed to protect civilians from threat of attack, then I should
include a draft memo for his signature that implements my recommendation.
Too many times I have seen point papers proposing a certain course of action,
with nothing accompanying them to implement the proposal. This is a waste
of the commander's time and is simply incomplete staff work.
In my long career as a legal advisor to both U.S. and NATO forces, I
have seen a remarkable change, for the better, in the role of the lawyer in
influencing the course of military operations, to ensure they are executed in
conformity with national and international law. This is consistent with what we
now call the ‘Comprehensive Approach to Operations,’8 and to the
implementation of the ‘rule of law’ in the way we conduct operations. This is
an opportunity that should not be wasted or jeopardized by careless,
ineffective, or inflexible legal practice. Legal advisers should always see
themselves and conduct themselves as important members of a headquarters
team who work to assist in the accomplishment of the mission, while, at the
same time, ensuring compliance with legal principles.
The Legal Adviser’s Access to Information and the Commander
While I have presented a positive picture of how the role of legal
advisers has evolved to the point where they are now inserted into operations
teams, planning cells, and anywhere they need to be to remain abreast of
unfolding events in military operations, I should also point out that this ‘battle’ –
if we choose to call it that – is never completely won. Even today at SHAPE,
and throughout NATO's two strategic commands,9 our attorneys must remain
vigilant to guard against well-intentioned, but misguided, efforts to reorganize
headquarters' staffs and to relocate the lawyers, placing them deep in the
organizational tier, under a Director of Support, Personnel, or some other nonlawyer intermediate officer. The rationale of such a move is that ‘Legal’
belongs under ‘Support.’ Proponents of this shift argue, as well, that if the
lawyer needs to see the commander, they may always submit a request
through the chain of command to do so.
7
UNSC Res. 1973, 17 March 2011.
The ‘Comprehensive Approach’ to operations was included as a part of NATO’s new Strategic
Concept, adopted on 20 November 2010 at the Lisbon Summit. According to this new Strategic
Concept, ‘[t]he lessons learned from NATO operations, in particular in Afghanistan and the
Western Balkans, make it clear that a comprehensive political, civilian and military approach is
necessary for effective crisis management (NATO, ‘Active Engagement, Modern Defence:
Strategic Concept for the Defence and Security of The Members of the North Atlantic Treaty
Organization’, Lisbon, 20 November 2010, http://www.nato.int/lisbon2010/strategic-concept-2010eng.pdf, § 21.
9 Allied Command Operations (ACO) and Allied Command Transformation (ACT).
8
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The Evolving Role of the Legal Adviser in Support of
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This view, however, misses the main point: The legal adviser must have
daily access to the flow of information that takes place in the operational
arena, as well as at the top level of the headquarters, i.e., within the
‘Command Group.’ Even during those rare periods in which there is no
operation in progress, military headquarters' staffs are always involved in
planning or policy-making that has some legal implications. The legal adviser
must be in a position to influence these policies at the highest level within the
headquarters. Furthermore, the legal adviser must also have direct access to
the commander, whenever required, not through an intermediary.10 Further, it
cannot be left to the non-lawyers to decide when there is a legal issue
requiring consultation with the legal adviser. We all know the perils of this
approach, given the legal adviser's unique ability to spot legal issues that nonlawyers would miss.
“The legal advisor
must have daily
access to the flow of
information that
takes place in the
operational arena,
as well as at the top
level of the
headquarters, i.e.,
within the Command
Group.’"
Ensuring that the commander has access to a competent legal adviser
is not a new concept. It was codified nearly thirty-five years ago in Additional
Protocol I to the Geneva Conventions.11 At SHAPE, in an ‘effort to reinforce our
efforts’ to ensure that proper access is maintained for legal advisers, we issued
– in partnership with Headquarters, Supreme Allied Commander
Transformation – a Bi-Strategic Command Directive.12 Such a directive
emphasizes the requirement of ensuring that legal advisers throughout the
NATO Command Structure have direct access to their commanders, and to
the information they require to fulfill their duties of providing day-to-day advice
concerning the Law of Armed Conflict and all other relevant international law.
The Directive also highlights the legal adviser's role in working closely with the
other divisions of their headquarters' staffs, encouraging them to be engaged
in a supportive or coordinating role, as I alluded to above. While conventions
and directives alone cannot guarantee that the legal adviser's proper role
and access will be maintained, they provide relevant policies we can rely
upon in presenting our case to our commanders and other officers of our staffs
who are responsible for organizational matters, tasking, and flow of
information.
At the end of the day, perhaps the most persuasive argument is that if
commanders do not consult and rely upon the lawyers at the inception of a
military operation, they may ultimately be compelled to work with us at the
conclusion. This is why legal advisers should never completely divorce
themselves from their military justice roots. As a popular TV commercial once
stated, ‘you can pay us now, or you can pay us later!’
10 At SHAPE, as in many staffs, the legal adviser reports on a day-to-day basis to our four-star Chief
of Staff (COS). This is a normal and perfectly satisfactory arrangement, given that it is well
understood by the COS that on some occasions it may be necessary for the legal adviser to deal
directly with the commander whenever he or the commander deems it necessary to do so.
AP I, Art. 82 - Legal advisers in armed forces: ‘The High Contracting Parties at all times, and the
Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when
necessary, to advise military commanders at the appropriate level on the application of the
Conventions and this Protocol and on the appropriate instruction to be given to the armed forces
on this subject.’
11
12
‘NATO Policy on Legal Support’, NATO Bi-SC Directive 15-23, 23 July 2009, unpublished.
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The Evolving Role of the Legal Adviser in Support of
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Unique Challenges of Serving as a NATO Legal Adviser
Finally, I cannot avoid adding a few words regarding the unique
challenges of serving as a legal adviser to a NATO Commander. I would
imagine these comments would similarly pertain to legal advisers serving
the commanders of any multinational force, such as an EU or UN force.
Again, like many of the readers of this Journal, I have spent the
great majority of my career as a legal adviser serving national
commanders and national defense officials. Until six years ago, when I
began serving as the legal adviser to SACEUR and to SHAPE, my sole
experience was advising U.S. national authorities. Although I had worked
for many years in Europe, including in coordination with the SHAPE Legal
Office and NATO, I had never worked directly for a NATO military
commander. Somewhat naively, perhaps, I expected the practice of
advising NATO commanders to be quite similar to advising U.S.
commanders, especially so since my chief client, SACEUR, was ‘doublehatted,’ serving simultaneously as both a NATO commander and a U.S.
commander (Commander, U.S. European Command). It turned out that I
was quite mistaken in this expectation.
In the past six years, I have frequently dealt with issues that have
arisen from the tension or conflict that can often exist between national
laws and policies versus those of NATO. Additionally, in advising SACEUR
and other NATO commanders, I needed to adapt to the reality that their
legal authority is limited when compared to that of their national
counterparts. When I advise SACEUR, it is important to point out that when
he acts in his NATO hat, his authority is substantially different from when he
gives an order as a U.S. commander. Although this should be obvious to
lawyers and commander alike, it is often easy to revert to our past practice
as legal advisers to our national legal service and fail to remind ourselves of
the key legal distinction between nations and NATO. I have portrayed this
distinction in the following chart:
NATIONS v. NATO
NATIONS
NATO
SOVEREIGNTY
NO SOVEREIGNTY
PARLIAMENTS/CONGRESS
NO PARLIAMENT/CONGRESS
ENACT LAWS
NO LAWS
ENFORCE LAWS
NO ENFORCEMENT
PUNISH VIOLATIONS
NO PUNISHMENT
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39
The Evolving Role of the Legal Adviser in Support of
Military Operations
In essence, it all boils down to a single word: ‘Sovereignty.’ Whilst
nations have it, NATO does not. NATO is an alliance of 29 sovereign nations,
but none of the sovereignties owned by its member states ‘rubs off’ onto
the Organization. Therefore NATO commanders, such as SACEUR, have no
enforcement powers, neither themselves, nor in the hands of senior NATO
civilian officials, to enforce any orders.
Perhaps the most celebrated example of this lack of enforcement
power was the order from General Clark, the SACEUR, in June 1999 to British
Lieutenant General Mike Jackson, the Commander of the Allied Rapid
Reaction Corps (ARRC) and of NATO’s forces in Kosovo (COMKFOR), to
stop the Russians from landing at Pristina Airport. The reply from COMKFOR
to SACEUR was: ‘I am not starting World War III for you, sir!’13 SACEUR was
powerless to do anything in the face of this refusal by his subordinate
officer to carry out his order. It is difficult to conceive a situation like this with
a comparable result in a national military setting.
Further, the NATO commander faces another challenge. He has
some ‘competition’ from national authorities that can clearly limit his
prerogatives and even his ability to execute his mission. This competition
stems from national laws and policies that ‘trump’ or override NATO
direction, even when such direction derives from Operational Plans or Rules
of Engagement that have been approved by the 28 nations sitting in the
North Atlantic Council (NAC). The graphic below depicts this phenomenon:
DUAL CHAIN OF AUTHORITY
NATO
CHAIN
COMISAF - IJC
RC SOUTH
NATO TF CDR
NATLAUTH
MOD ETC.
1. CAVEATS
2. USE OF FORCE/ROE
3. SELF DEFENSE
4. DETENTION
5. COUNTER NARCOTICS
6. INVESTIGATIONS
7. DISCIPLINE
13
The Daily Telegraph, ‘Gen Sir Mike Jackson: My Clash with Nato Chief’, 4 September 2007,
http://www.telegraph.co.uk/news/worldnews/1562161/Gen-Sir-Mike-Jackson-My-clash-with-Natochief.html.
The Daily Telegraph, ‘Gen Sir Mike Jackson: My Clash with Nato Chief’, 4 September 2007,
http://www.telegraph.co.uk/news/worldnews/1562161/Gen-Sir-Mike-Jackson-My-clash-withNato-chief.html.
13
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40
The Evolving Role of the Legal Adviser in Support of
Military Operations
The diagram above uses the Commander ISAF chain as an example,
but it could apply just as well to the military chain emanating from SACEUR
down through any of his operational commanders. It must be kept in mind that
a NATO force is not truly an international contingent. Rather it is composed of
national units, land, sea, and air that nations have agreed to place under the
temporary operational control of a NATO commander. These national
contingents, even when placed under NATO command, are never divorced
from national control. Thus, the important point to bear in mind is that the ‘red
line’ above always trumps the ‘blue line’. The red line, which represents
national direction to commanders, is backed up by laws and enforcement
powers, whereas the NATO blue line is not.
Thus, for example, if there is a clash between national direction
regarding detained personnel in Afghanistan versus what is provided in the
North Atlantic Council (NAC)-approved operational plan and rules of
engagement for the ISAF operation, the national rules will control the actions
of a national commander, even of one who is under the operational
command and control of COMISAF. Similarly, nearly all nations that contribute
forces to a NATO operation, such as ISAF, KFOR, or Unified Protector (Libya),
provide those forces subject to certain ‘caveats’ that may restrict where the
force may operate, when lethal force may or may not be used, and the types
of operations in which their national forces may participate. One or two
nations even limit their pilots’ reliance on forward air controllers to only those
personnel who come from nations which have ratified Additional Protocol One
to the Geneva Conventions.
The list in red, above, reflects other areas in which NATO commanders
and their legal advisers must address and work around the conflict that
frequently exists between national authority and NATO rules and policies in key
operational areas. At the end of the day, the NATO commander and his legal
adviser must bear in mind that the commander’s authority is limited in
comparison with that enjoyed by a national commander. And, as mentioned
above, a NATO commander’s direction is not backed up by any possibility of
discipline or other enforcement.
As my colleagues in the Strategic Communications Office often say, in
the NATO world: ‘We must give up the illusion of control in favor of the reality of
persuasion.’ Perhaps therein lays the key to having a successful practice as a
legal adviser to a NATO commander!
Thomas E. Randall
Legal Adviser, Supreme Headquarters Allied Powers Europe (SHAPE)
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41
Book review - Shipping Interdiction and the Law of the
Sea, by Douglas Guilfoyle1
Vincent Roobaert
“The events in
Somalia and the
Horn of Africa have
shown however, that
piracy is neither a
thing of the past nor
limited to the
Malacca Strait and
that acts of piracy
could seriously hinder
international
commerce and
transportation of
goods.”
If one were to conduct a survey among international lawyers a couple
of years ago about which branch of international law they would consider
relevant for their work, many would probably have answered the law
governing piracy. To be fair, while there were some discussions on piracy
when the Rome Statute for the International Criminal Court was negotiated,
the interest was not so much in the crime of piracy itself but in its
consequences, namely the possibility for all States to prosecute pirates on the
basis of universal jurisdiction. The events in Somalia and the Horn of Africa
have shown however, that piracy is neither a thing of the past nor limited to
the Malacca Strait and that acts of piracy could seriously hinder international
commerce and transportation of goods. Today, international lawyers are
concerned with determining whether and in which circumstances a
suspected pirate vessel may be intercepted and boarded and how and
where pirates can be prosecuted.
In Shipping Interdiction and the Law of the Sea, Douglas Guilfoyle
examines interception, boarding and arrest of foreign flag vessels and their
crews in the high seas. The book does not aim at examining rules on war time
blockade but rather it looks at the actions that may be undertaken in
peacetime. After explaining basic principles on maritime jurisdiction, the
author reviews the following topics in greater detail: piracy and the slave
trade, drug trafficking, fisheries management, unauthorized broadcasting,
migrant smuggling and counter-proliferation of weapons of mass destruction.
The author starts by making a distinction between prescriptive and
enforcement jurisdiction. Prescriptive jurisdiction refers to a State’s authority to
set out rules of conduct. Enforcement jurisdiction refers to a State’s authority
to ensure compliance with the rules it has enacted. Contrary to prescriptive
jurisdiction, enforcement jurisdiction is usually limited to the territory of that
State. In maritime cases, a State’s enforcement jurisdiction may be subject to
the consent of the flag state but consent of the flag state to board a vessel
may not necessarily extend to the right to seize the vessel. The author then
explains the distinction made in the law of the sea between the territorial sea,
the continuous zone, the exclusive economic zone, the continental shelf or
the high sea and the impact of such distinction on a State’s jurisdiction.
The author’s subsequent review of the specific offences that may lead
to boarding and interdiction underlines the lack of a unified regime governing
shipping interdiction. In addition to the Convention on the Law of the Sea and
other multilateral treaties, interception may also be governed by bilateral
agreements whose content may therefore vary greatly.
1
Cambridge University Press, 2011, ISBN 9781107639072.
NON SENSITIVE INFORMATION RELEASABLE TO THE PUBLIC
42
Book review - Shipping Interdiction and the Law of the
Sea, by Douglas Guilfoyle
Starting with piracy and the slave trade, the author reviews the criteria
conditioning the qualification of an act as an act of piracy, namely an act of
violence for private ends occurring on the high seas by the crew of a private
ship. While States have for a long time understood the importance of fighting
piracy, the author shows that the prosecution of pirates is a possibility for states
but not an obligation. Again, this underlines the lack of a unified legal regime.
After a discussion on the theoretical aspects of piracy, the author reviews the
situation in the Malacca Strait and the Horn of Africa.
The author’s review of interception in case of drug trafficking or
migrant smuggling also reveals that these issues are governed by various
instruments adopted at the universal, regional or bilateral levels. Of particular
importance is the author’s analysis of the tension between a State’s right to
limit migrant smuggling and a State’s obligations of ‘non-refoulement’ under
the 1951 refugee convention.
The author concludes his review of specific cases of interdiction by
recent efforts to counter the proliferation of weapons of was destruction and,
in particular, the Proliferation Security Initiative and the attempts to create a
crime of transporting weapons of mass destruction material by sea.
To conclude, Douglas Guilfoyle reviews the responsibilities of the
boarding state under international human rights law and the possibility for the
boarding state to use force during an interception. He then examines the
potential immunities granted to the boarding state and its agents and the
reparation regime in the Convention on the Law of the Sea.
As one can appreciate, the legal regime governing a State’s right to
board, visit and seize a vessel is a complex one. In Shipping Interdiction and
the law of the sea, Douglas Guilfoyle nevertheless succeeds in steering his way
across this complex topic in a clear and accessible manner.
Vincent Roobaert
Assistant Legal Adviser, NCIA
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43
Hail
HAIL
JWC Stavanger: Col Randy Kirkvold (USA A).
Mr. David Nauta (NDL CIV.
JFC HQ Naples: Col Kerry Wheelhan (USA A).
&
NATO School: LTC Brian L Bengs, (USA AF).
NATO HQ Sarajevo: LTC Darrin K. Johns (USA AF).
FAREWELL
HQ SACT:
CDR Shelby L. Hladon (USA NAV).
Ms. Alexandra Perz, (DEU CIV).
ACT SEE:
Georgina Dietrich (DEU CIV).
Tom Hughes (USA CIV).
Farewell
JWC Stavanger: Col Brian Brady left in June 2012.
JFC HQ Naples: Col Anne Ehrsam-Holland left in July 2012.
JFC Lisbon: Col Philippe Trouve left in June 2012.
NATO School: LtCol Ken Hobbs left in June 2012.
EUROCORPS: Mr. Frank Burkhardt left in May 2012.
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44
Spotlight
CDR Shelby L.
Hladon, JAGC, USN
Staff Legal Adviser
Name: Shelby L. Hladon
Rank/Service/Nationality: Commander / Navy / US
Allied Command
Transformation
Job title: Staff Legal Adviser, HQ SACT
Primary legal focus of effort: Maritime Law, Legal Support to Joint Force Training,
and Liaison to HQ, Host Nation, and US Navy
Likes: Spending time with my husband and our two sons (5 and 3), exercising,
volunteering, and travelling
Dislikes: Negativity!
When in Norfolk, everyone should: Live/stay near the water
Best NATO experience: Ask me at the end of this tour 
My one recommendation for the NATO Legal Community: I’m a big fan of
working together
[email protected]
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45
Spotlight
Name: David Nauta
Rank/Service/Nationality: NATO civilian, Dutch
Job title: Deputy Legal Adviser Joint Warfare Centre, Stavanger, Norway
Primary legal focus of effort: Training development and host nation support
Likes: Good food and a good laugh
Dislikes: My cooking skills
When in Stavanger, everyone should: Ask Lone Kjelgaard where to go, as I just
arrived 2 weeks ago. Do try the many Thai restaurants; there are over 6 of them
just in the centre! I’ve tried them all.
Best NATO experience: Working together with so many cultures.
My one recommendation for the NATO Legal Community: Stay in contact by
calling each other, meeting at legal conferences and exchanging experiences
and ideas.
[email protected]
NON SENSITIVE INFORMATION RELEASABLE TO THE PUBLIC
46
Spotlight
Name: Alexandra Perz
Rank/Service/Nationality: German (CIV, Res/ Army)
Job title: Assistant Legal Adviser HQ SACT
Primary legal focus of effort: Operational Law, LOAC/IHL, International Human
Rights Law
Likes: Work in multinational environment, travelling, learning about different
cultures, learning new languages
Dislikes: dishonesty
When in Norfolk, everyone should: Cultivate and foster friendships with people
from other NATO States
Best NATO experience: Deployment as Chief Legal Advisor of the Commander
RC North in Afghanistan
My one recommendation for the NATO Legal Community: Share information and
knowledge with colleagues
[email protected]
NON SENSITIVE INFORMATION RELEASABLE TO THE PUBLIC
47
Spotlight
Name: Darrin K. Johns
Rank/Service/Nationality: Lt Col, USAF, USA
Job title: NATO Headquarters Sarajevo, Chief Legal Adviser
Primary legal focus of effort: Advise NHQSa Commander on all legal issues
regarding implementation of the Dayton Peace Accords in Bosnia-Herzegovina.
Primary ethics counselor. Advise commanders on military justice and personnel
issues.
Likes: My wife!!! Family, church, criminal law, appellate advocacy, reading,
cool weather.
Dislikes: Swearing, crowds, heat, humidity (and I still don’t like liver!).
When in Sarajevo, everyone should: Take a historical tour through the city. This is
a city with history. It was here that Franz Ferdinand was assassinated sparking of
World War I. Some still call the assassin a hero while others a terrorist. The tunnel
to the Sarajevo airport is also a must see on the historical tour. The history behind
the tunnel is one that shows the great lengths people went through to survive
during the last war here.
Best NATO experience: NHQS assignment (only NATO experience)
My one recommendation for the NATO Legal Community: Get involved. Don’t
wait for the commander to come to you. Look for what the commander
doesn’t see that could hurt him/her and take care of it. Don’t be afraid to tell
the boss “no,” but try your best to understand the overall objective and get the
boss there even if it is by means other than the ones the boss has suggested. Just
as in a products liability case you need to know your client’s product and
business better than your client does, same applies with the military. You need
to know your boss’s business better than your boss knows it.
[email protected]
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48
UPCOMING EVENTS
2012 NATO LEGAL CONFERENCE 24-28 September
The Ministry of Defence of Albania will host the 2012 NATO Legal
Conference for legal personnel from NATO, Ministries of Defence and Foreign
Affairs of NATO and Partner Nations and selected partner organizations. The
conference will take place in Tirana, Albania from 24 – 28 September 2012 at the
Tirana International Hotel and Conference Centre, Scanderberg Square 8.
The theme of this year's conference is "Cooperating with NATO." We will focus
on the important legal aspects of NATO's dynamic and varied relationships with
non-NATO nations, international organizations, non-governmental organizations,
and industry.
In order to register please go to http://aco.nato.int/2012-nato-legalconference-september-24-28.aspx
Deadline to register is Friday August 22, 2012.
For any questions regarding the conference, please do not hesitate to
contact any of the POCs:
Mr. Sherrod Lewis Bumgardner, [email protected]
- NCN 254-5499 - COM: +32-65-44 5499
Petty Officer Jessye Leforestier, [email protected]
- NCN 254-4950 - COM: +32-65-44 4950
Ms. Georgina Dietrich, [email protected]
- NCN 254 - COM: +32-65-44 8142
Ms. Anne Boulengier, [email protected]
- NCN 254-4803 - COM: +32-65-44 4803
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49
UPCOMING EVENTS
The NATO School in Co-Operation with
The International Institute of Higher Studies
in Criminal Sciences (ISISC)
announces its 2012
Shari’a Law and Military Operations Seminar
19 – 23 November 2012
At the International Institute of Higher Studies in Criminal Sciences (ISISC), Siracusa, Italy
This seminar is offered because of its immediate importance to NATO’s ongoing
missions: the International Security Assistance Force in Afghanistan (ISAF), Kosovo Force
(KFOR), support to the African Union mission in Somalia (NSM Somalia) and for the
African Standby Force and NATO Training Mission–Afghanistan (NTM-A); and NATO’s
Numerous supporting relationships with Mediterranean Dialogue countries (Algeria,
Egypt, Israel, Jordan, Mauretania, Morocco and Tunisia), Istanbul Cooperation Initiative
countries (Bahrain, Kuwait, UAE, Qatar) and other countries such as Pakistan where
Shari’a Law applies.
The goal of this seminar is to provide instruction to military officers, legal advisors,
operational planners, political and policy advisors by internationally
pre-eminent scholars on Shari’a. The seminar will offer an introduction to Shari’a Law,
specifically discussing crime and punishment in the Shari`a law of
armed conflict, religiously motivated political violence, women’s and minorities’ rights
and operational issues. The detailed program will be provided at a
later date.
Place: International Institute of Higher Studies in Criminal Sciences (ISISC), Via Logoteta
27, Siracusa, Italy
Date: 19 – 23 November 2012
Registration deadline: 28 October 2012
Fee: 439,00 Euro
To register: forward (by email or fax) the attached NATO School Seminar Joining Report
to the ISISC Programme Coordinator Ms. Stefania Lentinello
([email protected]; fax: +39-(0)931-67622). The Joining Report can be
downloaded from the website of the International Institute of Higher
Studies in Criminal Sciences http://www.isisc.org or from the website of the NATO
School http://www.natoschool.nato.int.
The Course Fees are € 439,00, which include enrolment, participation in the lectures
and student materials. Hotel, flight and other means of transportation, on-site
transportation, social events, sightseeing, drinks and meals are not included in the
course fees. The fees should be paid in advance by wire transfer. Further information on
payment of the fees, on travel and accommodation will be sent with the registration
confirmation.
NON SENSITIVE INFORMATION RELEASABLE TO THE PUBLIC
50
UPCOMING EVENTS
NATO Cooperative Cyber Defence Centre of Excellence
NATO School Oberammergau
U.S. Naval War College
Announce their Joint
International Law of Cyber Operations seminar
10–14 December 2012
The seminar offers an introduction to computers and computer networks, as
well as to NATO´s policy and doctrine regarding cyber defence. Participants
will acquire a basic knowledge of public international law as it applies to cyber
operations, including, inter alia, issues such as the prohibition of the use of
force, the law of self-defence, countermeasures, LOAC, the law of neutrality,
legal attribution and State responsibility. The seminar will consist of
presentations by noted academics and practitioners, and will include practical
exercises focusing on the legal aspects of cyber operations.
Place: NATO School, Oberammergau, Germany
Date: 10 – 14 December 2012
Registration Deadline: 9 November 2012
In-processing: 9 December 2012, 1500-2100 at the NATO School Student
Administration Office
Fee: 439.00 Euro, due at in-processing
Target audience: Military and civilian legal advisors to the armed forces,
intelligence community lawyers, and other civilian attorneys in governmental
billets dealing with cyber issues
Classification: NATO SECRET (those without the required clearance may be
excluded from certain presentations)
To Register:
Forward (by email or fax) the attached NATO School Seminar Joining Report to
the NATO School Student Administration Office
([email protected]; fax: +49-(0)8822-9171-1399 or +49-(0)88229481-1394). You will also find the NATO School contact data on the Joining
Report. The detailed program will be provided at a later date. Information on
travel and accommodation will be sent with the registration confirmation. For
more information about the NATO School and Oberammergau visit:
https://www.natoschool.nato.int
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51
Articles/Inserts for next newsletter can be addressed to
Sherrod Bumgardner ([email protected]) and
Kathy Bair ([email protected]).
Disclaimer: The NATO Legal Gazette is published by Allied Command
Transformation/Staff Element Europe and contains articles written by Legal Staff
working at NATO, Ministries of Defence, and selected authors. However, this is
not a formally agreed NATO document and therefore may not represent the
official opinions or positions of NATO or individual governments.
NON SENSITIVE INFORMATION RELEASABLE TO THE PUBLIC